Rumour and gossip have returned to the courtroom
In his essay ‘Was the jury ever self-informing?’ Daniel Klerman explores how medieval juries were allowed to base their verdicts not on court evidence, but on information they learned through tight-knit communities and interested parties. He concludes that what distinguishes the medieval and modern jury is that medieval jurors came to court with extensive knowledge about the case and the defendant; rumour and gossip meant that jurors were ‘already informed’ before they walked through the door.
By Klerman’s standards, the Amber Heard and Johnny Depp trial, and the insatiable, salacious social media frenzy that came with it, was positively medieval. Amber Heard, in her first interview since the verdict, said that the “hate and vitriol” meant that no one could argue that there had been “fair representation”, and her lawyers have already argued that there was “no way” the jurors “could not have been influenced” by the gruesome media circus that spawned such malicious memes, misinformation, and even merchandise.
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It’s hard to disagree. The jurors were not sequestered, and there was a ten day break in the middle of proceedings. It would have been almost impossible for jurors to not have been exposed to the court of public opinion, whether through a deliberate search, an accidental notification, or a discussion with others. The trial was an inescapable spectator sport; the #justiceforjohnnydepp racked up almost 21 billion views. It is ironic that a defamation case sparked so much flagrant defamation; around 11% of the commentary was driven by fake accounts, one of which was run by a fake ‘juror’ who accumulated millions of views.
Even if jurors did somehow manage to avoid the seemingly omniscient social media commentary, the support for Depp was visible everyday outside the courtroom, as they walked past screaming hordes of so-called ‘Deppford Wives’ chanting ‘Amber Turd’.
Much has already been written about the social implications of the trial: whether this is the end of #MeToo and the beginning of #MenToo; what this means for victims of domestic violence; how we need to protect witnesses from spiteful trolling which can even end their careers. Yet there is one fundamental unanswered question: in the age of social media, where ‘trials by TikTok’ mean that anyone can be the arbiter of right and wrong, can there be such a thing as an unbiased jury?
Over the last decade there has been a sharp increase in the number of mistrials due to juror’s internet use; everything from tweeting during trials to researching defendant’s backgrounds to discovering a ‘virtual lynching mob’ in Facebook comments. According to research by UCL, almost 25% of jurors are confused about what they are allowed to do on the internet during jury service, while another study found that 12% of jurors looked at information about their trials online, while for high-profile cases, one in four did.
Clearer rules and regulations as well as heavier fines for inappropriate internet use can only go so far. In a world where everything is content, where information is a click or a pop-up or a swipe away, the lure of social media is simply too tempting. That is why, regardless of what you think of Amber Heard — whether you think she is a fraudulent fantasist or a victim of this ‘orgy of misogyny’ — this case should concern everyone.